--------DON’T
PLAY
WITH
FIRES
Firing employees used to be simple, but
today “wrongful termination” suits have
made dismissals nothing to play
around with
By Joseph Arkin
D
ismissing incompetent or dishonest employees used to be a
simple task. A responsible
manager simply fired the employee.
Now, firing an employee can lead to
a lawsuit against a business. And fired
employees have won many large court
settlements for wrongful termination.
Fired employees in California who file
suit win 75 percent of the time. The
settlements for “wrongful dismissal”
in those instances average more than
$500,000.
Obviously, a business should have
the right to dismiss employees when
the cause justifies firing. But recent
court decisions make it imperative to
properly handle and document actions
that result in an employee’s termination. Some basic precautions can help
reduce the potential for a successful
challenge to an employee’s termination.
First, an employer should clearly
state the reason for an employee’s termination. In most circumstances, the
employer must show the termination
resulted from substandard performance or job-related negligence.
A negligence claim usually focuses
on a single action; the employee’s actions must represent clear negligence
relative to their normal duties and
obligations to the firm. Substandard
Employers are increasingly being taken to court for “wrongfully” dismissing
workers. Companies often lose because they fail to document in writing those
steps leading to the contested firing.
Construction Dimensions/July 1988 19
performance is repeated failures to perform at an acceptable level. For example, an alcoholic can’t be fired solely
for his condition, but may be terminated for negligence if he comes to
work drunk. Or he may be dismissed
for substandard performance when he
becomes unable to perform standard
job-related skills. In neither circumstance does the alcoholism itself
justify an employee’s dismissal.
As a critical measure of protection,
employers should document employees’ substandard performance in writing. Indeed, only written proof provides a viable defense against any legal
challenge to an employee’s termination. Always have solid documentation
before beginning disciplinary action,
and also document efforts to address
and remedy employees’ problems with
progressive efforts to improve substandard performance.
View an employee’s personnel file as
a neutral observer. What is in the file?
What is in writing? Does the written
record support the disciplinary action
or firing? A welldocumented file is an
essential prerequisite to any decision to
fire an employee.
Always conduct a pre-termination
hearing before firing an employee. Explain the reason for the termination.
Present evidence that justifies the action. Then, give the employee opportunity to respond. Never fire an
employee without a fair, thorough pretermination hearing. Again, document
the process in writing.
Never use demeaning words when
writing dismissal letters or holding
disciplinary conferences. Courts and
personnel boards often rule against
employers who humiliate terminated
employees. An employee fired for
“gross insubordination” and “disloyalty” collected a million dollars in
punitive damages for undue mental
anguish and emotional distress.
Focus on the fact in each termination case. No legal or moral cause for
termination exists without indisputable
facts. The absence of documented
facts can provide legal grounds for
challenging a termination.
For example, a public employee
gained reinstatement after municipal
attorneys failed to establish as a “fact”
that he willfully disregarded management objectives to improve surveillance
for suspected theft. Management could
not produce written communications
or verify conversations to support its
claim.
20 July 1988/Construction Dimensions
Remember the last incident that
precipitates firing an employee is the
most important. Judges, arbitrators
and hearing officers also look for progressive discipline, but typically focus
on the last incident. So employers must
handle the final incident without fault.
For example, in one case, an
employee with a history of sick-leave
abuse called in “sick” following a holiday. However, the person receiving the
call failed to inform the employee’s
supervisor. The employee was fired,
but the court ordered reinstatement
because the employee had followed the
proper procedures.
Dismissal is not punishment, but
only the last resort after trying to correct an employee’s problems. Using
termination as a vendetta or punishment often leads to foolish mistakes.
In another case, a supervisor complained to several co-workers regarding
an employee’s inability to learn basic
skills. The supervisor’s derogatory
statements later led to the employee’s
court-ordered reinstatement.
Managers should implement policies
and procedures that reduce the number
of wrongful terminations. When communicated effectively, those policies
and procedures can improve employee
morale as well. Here are some
examples:
• Provide a way for employees to
voice their concerns or complaints. Set
up an employee’s grievance process,
then encourage employees to use it. Of
course, protective measures are required so employees who file grievances don’t suffer retaliation. A formal grievance process helps channel
employee problems into an orderly
process that can lead to positive solutions and develop more productive
employees.
• Clarify and publicize policies
regarding unacceptable off-duty conduct, and develop balanced disciplinary procedures for violating those
policies. Then, dispense discipline in a
fair, consistent manner.
• Eliminate restrictions which limit
employee access to personnel files.
Such restrictions can easily forment
unnecessary suspicion among employees. Allowing access eliminates a
potential point of contention, and
helps prevent a potential legal problem when employees are terminated.
A positive, assertive approach to
personnel management will reduce
the number of
employee terminations that become necessary
Legally, arbitrators may view restrictions as denials of due process, tilting
any decision in favor of the employee.
• Conduct periodic employee attitude surveys as a basis for developing staff communication and training
programs that keep employees informed on changes in procedures. This
helps improve morale and enables employees to meet management’s expectations. Often, merely showing the
concern helps solve attitude problems.
Every employee’s circumstances
change as a business. grows and
develops. So regularly review and
revise personnel policies and procedures. Continuously update personnel
manuals and communicate important
changes directly to all employees.
A positive, assertive approach to
personnel management will reduce the
number of employee terminations that
become necessary, and help provide a
staunch defense when firing an
employee becomes unavoidable.
About the author: Joseph Arkin has
written extensively for trade and professional journals.
Construction Dimensions/July 1988 21